The brief argues that the trial court incorrectly accepted the Agricultural Marketing Service’s (AMS) argument, which was inconsistent with rationale offered by AMS in the final rule, that the new final rule “is to correct misleading speech and prevent consumer deception” that purportedly occurred because of requirements AMS imposed in its 2009 version of the rule.

“Even putting aside the absurdity of a government agency referring to itself as an agent of ‘deception,’ the District Court should have rejected AMS’s belated declaration because it was a plainly impermissible post hoc rationalization.  Yet the District Court accepted it anyway,” the brief notes.

The appellants also contend that when the trial court accepted AMS’ rationalization, it applied the wrong legal standard regarding the First Amendment and compelled speech because the mandated labels at issue are not voluntary deceptive advertising.

“There is no such voluntary misleading advertisement here; AMS is the source of the alleged ‘deception’,” the brief says. “No court has ever before applied lesser scrutiny for compelled speech in such circumstances.”

Because of these factors and the irreparable harm being done to the industry right now, the appellants argue the final rule should be enjoined.

The lawsuit to block implementation of the COOL rule was originally filed July 8, 2013in the United States District Court for the District of Columbia. The original complaint is available here. A motion for preliminary injunction was filed July 26, 2013.

In their complaint, the plaintiffs explained that the final rule violates the United States Constitution by compelling speech in the form of costly and detailed labels on meat products that do not directly advance a substantial government interest.  They also explained that the 2013 regulation exceeds the scope of the statutory mandate, because the statute does not permit the kind of detailed and onerous labeling requirements the final rule puts in place, and that the rule is arbitrary and capricious, because it imposes vast burdens on the industry with little to no countervailing benefit.

The May 2013 rule at issue in the litigation was published by AMS in response to a World Trade Organization (WTO) Dispute Settlement Panel Ruling, which found that the 2009 mandatory-country of origin labeling for meat products rule violated the United States’ WTO obligations.  Mandatory country of origin labeling is currently in effect for many meat products.  AMS argued that the new May 2013 rule, which is more cumbersome and burdensome than the 2009 version, will somehow satisfy the nations that originally complained to the WTO prompting the ruling. 

Sources: AMI, NAMA